Can a lawyer pay a fact witness for the time the witness spends preparing for and giving testimony?

Plain-English summary

The committee considered whether an attorney could compensate a witness for the time the witness spent preparing for and giving testimony in litigation. It concluded that doing so was not improper where the client remains ultimately responsible for the cost, the compensation is not an inducement to testify, and it is not contingent on the outcome of the case. The committee added that the amount should reflect the fair value of time expended, calculated by the witness's usual hourly charge or another method that determines the reasonable value of the time spent, citing DR 7-108(C).

Currency note

The Virginia State Bar withdrew this opinion on November 18, 2021 (the opinion's heading records "Committee Op Withdrawn November 18, 2021"); it is no longer current guidance and is retained here only as research. The opinion was also issued in 1984, under Virginia's former Code of Professional Responsibility, before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. The committee note records that current Rule 1.8(e)(2) allows a lawyer to pay litigation costs and expenses on behalf of an indigent client. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a lawyer pay a witness for time spent testifying under this opinion?

A: Under this 1984 opinion (withdrawn in 2021), yes; the committee found it not improper to compensate a witness for the reasonable value of time spent, subject to its conditions.

Q: What limits did the committee place on the payment?

A: The client had to remain ultimately responsible, the payment could not be an inducement to testify, and it could not be contingent on the outcome of the case.

Q: How should the amount be set?

A: The committee said it should be the fair value of the time expended, calculated by the witness's usual hourly charge or by another method that determines the reasonable value of the time spent.

Background and rules framework

The opinion applied the former Code's DR 7-108(C), which governed a lawyer's payment to a witness, distinguishing reasonable compensation for time from a prohibited inducement or contingent payment. The subject corresponds to ABA Model Rule 3.4 on fairness to opposing party and counsel, which addresses improper inducements to witnesses.

Citations and references

Rules of Professional Conduct:

• DR 7-108(C) (payment to a witness) (former Code)
• ABA Model Rule 3.4 (fairness to opposing party and counsel; witness payment)

See also

• VA LEO 582: Guaranteeing a Physician's Litigation Charges
• VA LEO 820: Paying for a Former Client's Medical Records

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0587.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

LEGAL ETHICS OPINION 587

WITNESSES – PAYMENT BY ATTORNEY.

It is not improper for an attorney to compensate a witness for the reasonable value of time expended in the preparation for, and rendering of, testimony in litigation, when the client remains ultimately responsible, the compensation is not an inducement to testify and is not contingent upon the outcome of the case. The amount of the compensation should be a fair value of time expended calculated by a usual hourly charge or by some other method which determines the reasonable value of time spent. [DR:7-108(C)]

Committee Opinion
June 14, 1984

Legal Ethics Committee Notes. – Rule 1.8(e)(2) allows a lawyer to pay litigation costs and expenses on behalf of an indigent client.